State v. Kloss

2019 WI App 13, 925 N.W.2d 563, 386 Wis. 2d 314
CourtCourt of Appeals of Wisconsin
DecidedFebruary 21, 2019
DocketAppeal No. 2018AP651-CR
StatusPublished
Cited by4 cases

This text of 2019 WI App 13 (State v. Kloss) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kloss, 2019 WI App 13, 925 N.W.2d 563, 386 Wis. 2d 314 (Wis. Ct. App. 2019).

Opinion

KLOPPENBURG, J.

*318¶1 Kelly Kloss appeals the circuit court's denial of his motion for postconviction relief from his convictions of solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety. He argues that: (1) solicitation of first-degree reckless injury does not exist as a crime under Wisconsin law; (2) the evidence presented at trial was insufficient to support either conviction; and (3) because solicitation of first-degree recklessly endangering safety is a lesser included offense of solicitation of first-degree reckless injury, his convictions of both of those crimes are multiplicitous and, therefore, his conviction of one of those counts should be reversed. We reject Kloss's first two arguments, but agree with his multiplicity *566argument. Accordingly, we affirm in part, reverse in part, and remand with directions.

BACKGROUND

¶2 The following undisputed facts provide context for the discussion that follows. In October 2014, police officers arrested Kelly Kloss pursuant to two felony warrants after they found him hiding in a house he shared with his wife Cheryl. Kloss was subsequently incarcerated in the St. Croix County and Marathon County jails. In the twelve days following his arrest, Kloss made a series of over fifty telephone calls from jail to Cheryl, during which he made numerous derogatory and threatening remarks directed at Cheryl and directed at law enforcement.

¶3 Pertinent here, during several calls, Kloss told Cheryl to shoot a gun through the front door if any police officers returned to their house. Kloss's statements *319to Cheryl included the following: "I want you to get your handgun out and your shotgun out and if a River Falls cop comes to your door again, you open fire," "let them have it," "blow them away," "shoot right through the door right into the cop," "wipe them out," and "[i]n case you run out of cartridges in one, you could just use the other one. I mean, I'm hoping you're going to get at least half a dozen of them if you're going to get one .... You see them run, when they run, run out the door after them .... Chase them down and get a couple more." Each call was recorded and reviewed by law enforcement.

¶4 Based on the calls Kloss made to Cheryl, the State charged Kloss with multiple counts of solicitation under WIS. STAT. § 939.30 (2017-18).1 Relevant to this appeal, the State charged Kloss with one count of solicitation of first-degree reckless injury, WIS. STAT . § 940.23(1)(a), and one count of solicitation of first-degree recklessly endangering safety, WIS. STAT . § 941.30(1). Following a bench trial, the circuit court convicted Kloss of both counts. Kloss appeals.

DISCUSSION

¶5 For ease of discussion, we refer to solicitation of first-degree reckless injury as soliciting/reckless-injury and solicitation of first-degree recklessly endangering safety as soliciting/endangering-safety. As stated, Kloss makes three arguments on appeal. First, he argues that his soliciting/reckless-injury conviction must be reversed because the crime does not exist. Second, Kloss argues that his soliciting/reckless-injury conviction must be reversed *320because of insufficient evidence.2 Third, Kloss argues that soliciting/endangering-safety is a lesser included offense of soliciting/reckless-injury, and, therefore, his convictions of both crimes violate multiplicity principles. We address each topic in turn.

I. Whether Solicitation of First-Degree Reckless Injury Exists as a Crime Under Wisconsin Law

¶6 Kloss argues that soliciting/reckless-injury does not exist as a crime under Wisconsin law. This appears to present a question of first impression. Because its resolution requires us to interpret Wisconsin's solicitation and first-degree *567reckless injury statutes, our review is de novo. See State v. Briggs , 218 Wis.2d 61, 65, 579 N.W.2d 783 (Ct. App. 1998) (matters of statutory interpretation are reviewed de novo).

¶7 The solicitation statute provides that "whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent is guilty of a Class H felony." WIS. STAT. § 939.30(1). Thus, the pattern jury instruction lists two elements: (1) "[t]he defendant intended that [a particular felony] be committed;" and (2) "[t]he defendant advised another person, by the use of words or other expressions, to commit [that felony] and did so under *321circumstances that indicate, unequivocally, that the defendant intended that [the felony] be committed." WIS JI- CRIMINAL 550.

¶8 The first-degree reckless injury statute provides that "[w]hoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony." WIS. STAT . § 940.23(1)(a). Thus, the crime of first-degree reckless injury contains three elements: (1) the defendant must cause great bodily harm to another; (2) by conduct that created an unreasonable and substantial risk of death or great bodily harm of which the defendant was aware; and (3) under circumstances that show utter disregard for human life. WIS JI- CRIMINAL 1250.

¶9 Kloss's argument is directed solely at the interaction between the first element of solicitation (intent that a particular felony be committed) and the first element of reckless injury (causing great bodily harm). According to Kloss, it is not possible for a person to intend that another person succeed in causing great bodily harm by reckless conduct. Kloss reasons that this is not possible because whether harm will result from reckless conduct is "entirely unpredictable." The gist of Kloss's argument is that the resulting injury is unknowable at the time a solicitation occurs and, therefore, it is not possible to intend such injury. This argument is meritless.

¶10 We see no reason why a solicitor cannot intend, at the time he or she solicits reckless conduct from another, that great bodily harm result from the solicitee's reckless conduct. It may be true that a solicitor cannot know with certainty at the time of the solicitation whether an injury will in fact result from *322the solicitee's conduct-such uncertainty is inescapable in an inchoate crime such as solicitation. But no level of certainty is required to form a purpose to cause a particular result-that is, an intent that a result take place. See WIS. STAT . § 939.23(4) (the phrase "with intent that" means that an actor "has a purpose to ... cause the result specified").

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Bluebook (online)
2019 WI App 13, 925 N.W.2d 563, 386 Wis. 2d 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kloss-wisctapp-2019.